Court File and Parties

Court File No.: FS-13-896-0003 Date: 2023-04-03 Superior Court of Justice - Ontario

Re: A.M., Applicant And: D.M., Respondent

Before: J.E. Mills J.

Counsel: Heather Hansen and Brigitte Barsalou, for the Applicant Brian Ludmer, for the Respondent Fareen Jamal and Kathleen Broschuk, for K.M. Gilead Kay, for J.M.

Heard: March 31, 2023

Endorsement

[1] The use of affidavit evidence at trial is increasingly relied upon as a tool to shorten and bring focus to the trial process, with the intention of minimizing costs of the parties. [1] It can be quite effective. It can also prove to be a challenge for counsel accustomed to drafting affidavits for use on interlocutory motions. Hearsay evidence is permitted in affidavits for procedural matters before the Court; it is not permitted for trials.

[2] I accept the general principle that the rules of evidence must be applied in a relatively flexible fashion when considering the best interests of the children. [2] This ensures all relevant information, which may include evidence of character, lifestyle or past conduct, is before the Court when facing the difficult assessment of what parenting plan is in the best interests of the children. However, the rules of evidence respecting hearsay must not be relaxed at trial simply because a witness provides evidence in chief by way of a sworn affidavit. This applies in all trials, whether contested or uncontested.

[3] D.M.’s affidavits dated September 19 and 20, 2022, are replete with hearsay, sometimes double and even triple hearsay. She frequently recounts what was said to her by the children and what the children told others. For her trial evidence, D.M. also relies on prior affidavits sworn in support of various procedural motions. These affidavits contain many hearsay statements. Although quite proper at the time and for their original use, the hearsay is not presumptively admissible at trial. The collateral affidavits that support D.M. also contain hearsay statements.

[4] Counsel for the children and A.M. oppose the admission of any hearsay statements contained in the affidavits sworn by D.M., Mr. Richardson, and Ms. Brindle.

[5] To avoid compelling children to give evidence in family law trials, hearsay evidence of the children is admissible as a principled exception to the hearsay rule if the evidence is necessary and if it is reliable.

[6] Necessity is satisfied if the circumstances are such that it would be inappropriate to call the child as a witness to give evidence.

[7] Reliability will be met if the evidence is not objected to, if the child has repeated the same statement to more than one person, or where the statement has been made to a person who has a demonstrated skill in interviewing children. If admitted, the weight to be given to the hearsay statement of a child will depend on the age of the child, both mental and physical, the circumstances surrounding the taking of the statement, the risk the child was influenced or manipulated when giving the statement or that the statement itself was edited or manipulated, and the desire of the child to please or appease the parent taking or requesting the statement. [3] This is not a strict list of considerations for reliability as the factors to be taken into account will vary with each child and with the circumstances affecting or influencing that child. [4]

[8] On this voir dire, I must be satisfied the circumstances surrounding the hearsay statements meet a threshold reliability to be admitted. The statements must be sufficiently reliable to be admitted. This requirement will generally be met where there is no concern about the truth of the statement having regard to the circumstance in which it came about (giving rise to circumstantial guarantees of trustworthiness), or where the statement can be sufficiently tested by means other than contemporaneous cross-examination. [5]

[9] Counsel for D.M. asks that the impugned statements be admitted not for the truth of their contents, but rather for the simple fact that they were made. Despite this submission, counsel also seeks to rely on the statements to provide insight to the family and the challenges faced by the parents in implementing and adhering to the agreed upon parenting schedule. It is submitted the hearsay statements are necessary for me to have a full understanding and appreciation of the family dynamics. Without them, I will have no evidence as to why the children will not go to their mother’s home, and I will have no basis on which to fashion appropriate remedies to solve the problems bedevilling this family. This use would require me to accept the statements for the truth of their contents. Therefore, I am satisfied that the statements are hearsay and presumptively inadmissible.

[10] Counsel further submits the voices of children can only be heard through the hearsay evidence of parents and therefore, the exception generally reserved for therapeutic professionals must be extended to parents. The children did meet with professional assessors and with a reunification therapist, all of whom will be witnesses at this trial. Some of the reports are rather dated and the most current assessment was completed without any input from D.M. She is therefore of the view that she is the only source available to provide a full narrative and to offer current evidence respecting the children. In the circumstances, this can only be done through hearsay statements. On this basis, D.M. submits the statements are necessary.

[11] With respect to reliability, counsel submits that because D.M. has never been faulted for a lack of credibility or reliability over the ten years these parties have been engaged in litigation, the hearsay statements in her affidavits should be afforded the presumption of reliability. I should assume her hearsay statements are reliable unless and until I find them not to be reliable. Counsel submits it would otherwise be impossible for any parent to establish reliability at the outset of any trial. It is further submitted that I cannot presume the hearsay statements contained in the police or Children’s Aid Society records or the professional reports are any more reliable than the statements made by D.M. I am asked to apply a broader lens to assess reliability and to be practical in my application of the rules of evidence to find creative and better ways to deal with family disputes, particularly in this case which is difficult and atypical. It is submitted that justice cannot otherwise be done.

[12] In the absence of any legal or statutory authority directing me to depart from the existing rules of evidence or to re-write the rules of evidence in family law proceedings, I decline to do so. The impassioned pleas of counsel to change the way evidence is received in family law trials would result in the admission of unfettered hearsay evidence. There would be no gatekeeper; rather, everything said by a parent would be admitted as being necessary and reliable unless and until proven otherwise. This approach would inevitably result in longer and more acrimonious family law proceedings, a result that will benefit no one.

[13] The children have independent counsel and they have participated in assessments and counselling with therapeutic professionals who will be witnesses at this trial. The voices of the children will be heard without the need to rely on hearsay evidence. The reliability of the views and preferences expressed by the professionals may be tested through cross-examination.

[14] The statements contained in the affidavits of D.M., Mr. Richardson and Ms. Brindle lack procedural and substantive reliability. There is no means to test the truth or accuracy of the statements and there are insufficient circumstantial or evidentiary guarantees that the statements are inherently trustworthy. [6]

[15] The statements in question attributed to the children lack inherent trustworthiness. Both children have been diagnosed with autism spectrum disorder and cognitive disabilities. The older boy has admitted to lying to his parents and his teachers. The younger boy has lied to his family, to his teachers, and to the police. He is highly suggestible and will say what he feels is necessary to extricate himself from an uncomfortable situation.

[16] The statements allegedly made by the boys cannot be taken as inherently trustworthy and there are no independent means by which to test for their truth or accuracy. There is no procedural or substantive reliability to the statements of the children relied upon by D.M., Mr. Richardson, or Ms. Brindle. They must not be admitted into evidence.

[17] The statements referencing statements contained in the Section 30 Report of Ms. Goldhar are hearsay. Ms. Goldhar will be a witness at the trial and may be cross-examined on these statements. It is inadmissible hearsay in D.M.’s affidavits.

[18] Attached as Schedule “A” and “B” are the summaries of my rulings respecting the impugned paragraphs.

J.E. Mills J. Date: April 3, 2023

Schedules

Schedule B

List of Hearsay Statements of D.M.’s Evidence for K.M.

1. Affidavit of William Richardson sworn September 18, 2022 [B1392]:

   • Para. 11 – hearsay statement, inadmissible
   • Para. 12 – fifth sentence is inadmissible hearsay; balance of the paragraph is Mr. Richardson’s independent observations of K.M. and the situation.
   • Para. 14 – admissible as Mr. Richardson’s independent observations.
   • Para. 31 – admissible, reliability may be tested by cross-examination of D.M.
   • Para. 38 – admissible as Mr. Richardson’s observations and impressions
   • Para. 52 (c) – hearsay but will be admitted for context and the reliability of the narrative can be verified through cross-examination of A.M.; (j) – sentence commencing “A. told us …” is inadmissible hearsay; (l)—sentence commencing “It was my understanding …” is inadmissible hearsay; (p)(iii) and (iv) – inadmissible hearsay

2. Affidavit of D.M. sworn September 19, 2022 re: K.M. [B1407]:

   • Para. 15 – last two sentences are inadmissible hearsay
   • Para. 18 – bolded narrative is inadmissible hearsay
   • Para. 19 – information from Mr. Ricketts is inadmissible hearsay
   • Para. 26 – last sentence is inadmissible hearsay
   • Para. 27 – if D.M. overheard the conversations, they may be admissible; if the information was conveyed to her by K.M., it is inadmissible hearsay
   • Para. 28 (a-l) – inadmissible hearsay
   • Para. 29 – observations of D.M. are admissible, statements attributed to K.M. are inadmissible hearsay
   • Subpara. 32 (a) to (d) – inadmissible hearsay
   • Para. 34 – inadmissible hearsay
   • Para. 35 – last two sentences are inadmissible hearsay
   • Para. 37 – balance of paragraph following “K.M. stated:” is inadmissible hearsay
   • Para. 38 – although hearsay, the reliability may be tested by cross-examination of the teacher so I will allow this evidence to be admitted
   • Para. 39 – sentence commencing “However …” is inadmissible hearsay
   • Para. 40 – although hearsay, the reliability may be tested by cross-examination of the teacher so I will allow this evidence to be admitted
   • Para. 41 – sentence commencing “He expressed to me …” is inadmissible hearsay
   • Para. 42 – the last two sentences are inadmissible hearsay
   • Para. 44 – inadmissible hearsay
   • Para. 45 – first two sentences are inadmissible hearsay
   • Para. 49(c) – inadmissible hearsay
   • Para. 52 – the last two sentences are inadmissible hearsay
   • Para. 54(c) – I will allow this evidence to give context to para. 54(b)
   • Para. 55 – admissible; evidence may be tested by cross-examination of the teacher/principal
   • Para. 61 – inadmissible hearsay
   • Para. 65 – statements in bold are inadmissible hearsay
   • Para. 72 – inadmissible hearsay
   • Para. 73 – inadmissible hearsay
   • Para. 77 – inadmissible hearsay
   • Para. 79 – inadmissible hearsay
   • Para. 106 – admissible
   • Para. 157 – admissible – not hearsay, recounts observations and impressions of D.M.
   • Para. 171 – last sentence is inadmissible hearsay
   • Paras. 173 to 180 – inadmissible hearsay
   • Para. 220 – last sentence is inadmissible hearsay
   • Para. 223 – inadmissible hearsay
   • Paras. 224 to 227 – statements attributed to K.M. are inadmissible hearsay
   • Para. 228 -- admissible

3. Affidavit of Jayne Brindle sworn March 29, 2023 [B8380]:

   • Paras. 2, 3, 4 – inadmissible hearsay
   • Para. 6 and 7 – inadmissible hearsay
   • Para. 8 & 9 – admissible, subject to verification by cross-examination of D.M.
   • Para. 10 –witness impressions of meeting is admissible.

Schedule “A”

Affidavit of D.M. dated September 20, 2022 re J. M.

Location in Caselines: Master: B1464

Paragraph #	Statement	Ruling
41	“ J.M. said he did not send them and that his father and his father’s sister Nicole sent the Friday night texts. J.M. claimed to have seen them do it. J.M. informed me that he had slept over at Nicole's home on the Friday night instead of coming into my care. He said his dad would not allow him to come to my home and that his father made plans to have J.M. sleep over at Nicole Marsden’s apartment so as to interfere with my parenting time”	hearsay statement – inadmissible
42	“J.M. informed me that his father unilaterally planned for him to be homeschooled”	hearsay statement – inadmissible
47	“…J.M. later informed me that he and his father left his residence around 2:30 pm to take his dog to the dog park at Bronte Road.”	hearsay statement – inadmissible
48	“.. he said he wanted to spend time with “his family” on Family Day.” “J.M. disclosed to me that his father would not let him come with me for our parenting time. J.M. told me when I came to transition the children, he was not at home.” “I asked J.M. about the text messages and J.M. said he did not send any text messages to me all weekend. I showed him the text messages on my phone, from his number, and he said he did not see these and did not send them. J.M. told me that he thought his father or Nicole must have sent them to me again.”	hearsay statement – inadmissible
49	“On Wednesday, February 28th, when J.M. came into my care, he asked me if I had gone to K.M.’s school the previous Friday. When I asked why, he informed me that K.M. shouted out for me to “die” after hearing my voicemail say that I loved and missed him. I asked J.M. if any of the adults present during this outburst told K.M. that was not an appropriate thing to say and J.M. said they did not. J.M. told me that his dad had praised K.M. that he did a “great job not talking to [D.M.] and treating [D.M.] that way””	hearsay statement – inadmissible
50	“When I asked J.M. at a later date what had happened, J.M. informed me that his dad came to pick him up and that he had been instructed to act “bad” by not listening to staff and to keep saying he needs to call his dad. J.M. claimed that if he listened to his father, he would take him out to lunch at A&W and then would allow him to come home and relax. I was disturbed to hear from J.M. that when his father came to pick up J.M. at school, his father called Mr. Sampson a “motherfucker” in front of J.M. and in front of staff members of Robert Bateman.”	hearsay statement – inadmissible
72	“During this trip, J.M. confirmed that: (a) [ A.M.] told him to leave the courtroom and to go to [A.M.’s] car (while [A.M.] was disturbing the courtroom transition); (b) during the attempt to transition in the evening of April 26th 2018, J.M. heard Nicole say that he didn’t have to talk to me; (c) Nicole had told J.M. not to leave with me when I came to the park to pick him up with the paternal family standing there with J.M.; (d) J.M. recalled and had been disturbed to hear his grandmother yell at Bill stating that he is not part of the family and expressed an understanding of Bill’s love for him and a positive view of Bill; (e) J.M. has been repeatedly exposed to the false narrative of A.M. and his family that I had “abandoned my children” when I had to flee the home to a women’s shelter in 2013; (f) J.M. has also been exposed to a false narrative that “I only pretend to love him”.”	hearsay statement – inadmissible
87	“J.M. has expressed to me that his father deletes the contacts and blocks our numbers so we cannot reach the children. J.M. has also told me that his father has threatened him if he contacts me or Bill by having his phone taken away or will get yelled at.”	hearsay statement – inadmissible
91	“After inquiring with the school, I was left with the understanding that J.M. revealed that A.M. had told him to leave the school to come home early.”	hearsay statement – inadmissible
96	“When I arrived at Fortino’s J.M. made numerous disclosures to me, including that: he and his father planned this event and J.M. was going to go to North Bay with his father. J.M. further disclosed that his father impressed upon him that if he comes into my care and starts going to school, he will have to stay with me for two years.”	hearsay statement – inadmissible
105	“J.M. continued this new, aggressive behaviour on November 6th, when he threatened school staff with a plastic knife, the Police were called. Officer Nickson was able to quickly calm J.M. down and get him to return to the school. When questioned by the officer, J.M. would not provide any realistic explanation as to why he ran away - he told the officer that he ran away "because Mr. Duley talked to me and he's not nice to my Dad". The officer inquired why he had threatened a staff member with the plastic knife and J.M. told him that "I don't like what's going on here. They're mean to my Dad. My Mom threw my Dad in jail for no reason". J.M. expressed sorrow to the officer for threatening the staff member and promised that he would not do this again.”	hearsay statement – inadmissible
117	“At p. 15 of the Section 30 Report, Ms. Goldhar notes that J.M. told her that his dad told him that I put A.M. in jail, which is another one of A.M.’s false narratives expressly prohibited by Justice Miller’s decision. A.M.’s extreme animosity towards me is clear, when he told Ms. Goldhar at p.8 of the Section 30 Report that he thought I was “evil”, that he hopes I “burn in hell” and that when “she meets her maker, he wants her to meet her consequences”.”	hearsay statements – inadmissible
118	“Ms. Goldhar provides a number of examples, where J.M. is clearly parroting things A.M. has said, including at p.13 and p.17 that “his mom doesn’t listen to my Dad’s lawyer” (although when Ms. Goldhar asked what his lawyer says, his response was that he didn’t know, but that his dad had told him that I don’t listen); that “my mom kept leaving and then never came back”, that he wished all of this “nonsense” would stop; and that I had thrown hot pasta sauce at A.M., although J.M. later admitted that he had never seen this, but that A.M. had told him that this had happened.”	hearsay statements – inadmissible
119	“In fact, on p.18 of the Section 30 Report, J.M. admitted to Ms. Goldhar that with respect to a number of disturbing emails I had received from him, A.M. had told him what to write, saying “they are my dad’s words”.”	hearsay statements – inadmissible
120	“In her observations of J.M. with myself and A.M., Ms. Goldhar notes at p.19 that every time J.M. was with me, he was friendly, in good spirits and had no issues with speaking with Ms. Goldhar privately. She noted the “stark difference” when he was with A.M. J.M. was then stressed and anxious about meeting with Marcie, and would repeat A.M.’s false statements that I was not a “real” mother because I left him at Christmas, that he hates Bill, that I threw pasta sauce at A.M., etc.”	hearsay statements – inadmissible
121	“At Pgs. 21-25 of the Section 30 Report, Ms. Goldhar corroborates my account of J.M.’s dramatic deterioration at school, once primary care reverted back to A.M. in October 2018 and the extensive measures the school had to take to deal with “the severity of J.M.’s recent behaviour and the risk he creates for himself and others”. As a result of these behaviours, and upon hearing a taped conversation I had recorded with J.M., where he expressly stated that A.M. had told him not to talk to Marcie anymore, that Marcie is a liar and that he was trying to get her fired, she determined that the assessment must be put on hold, and that a referral to Halton CAS was made.”	hearsay statement – inadmissible
125	“In her discussion, at pgs. 45-49, Ms. Goldhar notes that J.M. said that A.M. calls me a “bitch”, that A.M. is fixated on his narrative that I “left” the children, that numerous mental health professionals suggest that A.M. is not supportive of the children having a healthy relationship with me. She goes on to note that with respect to A.M. that, “It appears that he has undermined J.M.’s relationship with his mother”.”	hearsay statement – inadmissible
129	“However, when J.M. returned back from his father’s residence, he informed me that his father would not allow him to go with Ms. Bunny. He mentioned that he was scolded and got punishments at his father’s home. J.M. started to become afraid to go with Ms. Bunny. He also said his father would be driving around watching to see if J.M. disobeyed him. This was reported to the Halton CAS and J.M. had also disclosed this to Ms. Bunny, Bill and other family members.”	hearsay statement – inadmissible
130	“…J.M. disclosed that he had orders not to participate and attend that class. I emailed A.M. to say that J.M. was advising me that he was telling him to act out at school, so he does not go to this class.”	hearsay statement – inadmissible
131	“J.M. quietly said hello and appeared worried and uncomfortable. The following day when J.M. was in my care, he disclosed that he was fearful that Nicole would see our encounter and his father would be angry at him.”	The second sentence is a hearsay statement and inadmissible. The first sentence is not hearsay.
133	“…J.M. disclosed to me that his father said that Mr. Duley will be working in a McDonald’s after all this.” “I asked J.M. about his arm, and he told me that all she did was just guided him in the direction away from going into the public washroom. She placed no pressure on J.M. at all. J.M. told me that his father was going to call the Police on her. J.M. shared with me an email that was on his phone to his aunt Nicole from J.M.'s email indicating that Police were going to be called. J.M. denies writing the email. J.M. confided to me while he was in my care that his father was creating a plan to get Ms. Vicki fired.”	hearsay statement – inadmissible
134	“Finally, during this period J.M. continued to disclose to me the types of disparaging and damaging comments that A.M. makes when J.M. is in his care. (a) Including that A.M.: (I) continued to call Bill a bastard and myself a bitch; (II) said that we should rot and burn in hell; and(III) said that K.M. or himself are not permitted to contact me while in his father's and the paternal families care; (b) Further, when I asked J.M. if he received any of my messages either by text or voicemail, J.M. indicated that he sometimes got my voicemails but his dad was also listening to them and he was told that he cannot call back. The same also applies when K.M. gets voicemails from me. (c) J.M. continued to tell my extended family, Bill and myself that I put A.M. in jail; (d) J.M. disclosed that A.M. told him that I was going through his phone and seeing emails, photos, videos that I could use to get his father in trouble; (e) J.M. further informed me that his father told him that I do not spend enough money on him; (f) J.M. informed me that his father still said I left him or abandoned them and that I only pretend to love the children; (g) J.M. has informed me that his father and Aunt Nicole have told J.M. that I will leave and abandon Bill; (h) J.M. informed me that his father told him that I am sick in the head and I need a doctor; (i) J.M. told me that K.M. had expressed that he wanted to come see me but his father yelled at him and said no.	hearsay statement – inadmissible
139	“J.M. grew very stressed and anxious and stated that he had to “do the right thing” and return to his father the following day. I could hear J.M. in the bathroom talking to himself, repeating “I think the best thing to do is to go home tomorrow.” J.M. was so worried, that even though we were having a wonderful time.”	Not a hearsay statement – admissible as D.M.’s observations of J.M.
140	“In addition, there have been numerous incidents of inappropriate text messages being sent from J.M.’s phone, as well as disclosures from J.M. that other people had sent texts from his phone.”	hearsay statement – inadmissible
153	“J.M. told his grandmother that he was with someone he didn’t know, but that he was very nice.”	hearsay statement – inadmissible
154	“J.M. then called A.M. and A.M. spoke with Raj, yelling, demanding and threatening Raj to bring J.M. to A.M.’s house, in breach of the parenting time schedule.”	hearsay statement – inadmissible
186	“A copy of the text exchange between J.M. and A.M. on December 30 is found in the Respondent’s Document Brief. A.M. had asked J.M. where he was, to which he replied, at Bill’s house. A.M. then texted J.M.: “You are not supposed to leave your home in Burlington”, “Not good to be travelling around [J.M.] ” “Oh oh please be safe”. When J.M. said that Bill could speak to A.M. about being at his house, A.M. did not get in contact with either Bill or myself and instead continued to only correspond with J.M., saying “Just please be safe jase and I see you soon. Everyone has to follow the covid rules.” J.M.’s reply was “I am safe.””	Meets threshold of reliability and is therefore admissible.
233	“In fact, when J.M. and I had our dinner together on October 2, 2021, he continued to repeat the language that A.M. used to describe our new home – that it is “Bill’s house”. J.M. further adopted A.M.’s language that Bill does not have a great relationship with his daughter and that he has been married a few times – both of which are untrue.”	hearsay statement – inadmissible
286	“J.M. thereafter redirected his anger towards Mr. Cross saying that he had heard him yell at his father and threaten to call the Police.” “He proceeded to run into an Esso gas station and asked the Tim Hortons attendant there to use their phone.” “When he reached the bus he informed the driver that he needed help and he had no money. I explained what was going on and asked him to get off the bus, he refused.”	hearsay statement – inadmissible Not hearsay – admissible as D.M.’s experience and observations. Not hearsay – admissible as D.M.’s experience and observations.

[1] Rule 23(20.1), Family Law Rules [2] Power v. Power, 2004 ONCJ 281, at para. 51 [3] Wilson v. Wickham, 2018 ONSC 2574, at paras. 30 and 31 [4] Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124, at para.11 [5] R. v. Khelawon, 2006 SCC 57, at paras. 51, 62-63 [6] R. v. Bradshaw, 2017 SCC 35, at para. 27